Nursing homes, hospitals, rehab facilities or and health care facility have a duty to prevent decubitus ulcers, pressure sores or what is also called bed sores.

A common problem that I run into is the failure of the facility to change their care based on the changing condition of the resident.  If a person becomes sick, injured and immobile, their chance of getting an ulcer goes way up.  Healthcare workers have to recognize this increased risk and make plans, policy or procedure to prevent sores.

Below is a case we argued for a lady who became immobile after a hip fracture.  She developed a horrible stage IV ulcer that went into the bone.

PLAINTIFF’S POSITION PAPER

BRIEF FACTUAL BACKGROUND

Plaintiff was a resident at the defendant’s, Maison Teche Nursing Center, when she fell and suffered a fracture of the distal fibula on or about November 23, 2003.  She had surgery for that fracture on December 9, 2003 and returned to the nursing home December 12, 2003.  Sometime thereafter she developed a Stage IV decubitus ulcer which was not discovered by the nursing home until December 30, 2003 already in an advanced stage.  Ms. B underwent surgery for the ulcer January 13, 2004 at which time it was noted to be gangrene with osteomyelitis.  Thereafter she required extensive wound care therapy.  She was transferred out of Maison Teche to the Rehabilitation Hospital of Lafayette for that treatment.  She was then transferred to the Manor North Nursing Home in New Iberia.  Treatment for the wound continues to date.

Plaintiff has sued Maison Teche alleging that they breached the standard of care in allowing the fall and in failing to prevent/treat the ulcer.  Maison Teche was not qualified or enrolled with the Patient’s Compensation Fund at the time of her fall, November 23, 2003.  They were enrolled at the time of the negligent treatment regarding the ulcer.  Therefore, this panel by agreement of counsel for plaintiff and defendants, is to review only the issue of the nursing home’s negligence regarding the prevention and treatment of the decubitus ulcer.

SUMMARY OF PLAINTIFF’S ARGUMENTS

Maison Teche violated both federal and state regulations regarding the prevention and treatment of decubitus ulcers.  These federal and state regulations establish the appropriate standard of care.  They will be addressed in more detail later in this brief; however, a summary of the defendant’s negligence is as follows:

• Failed to develop and implement a comprehensive care plan for Ms. B (42 CFR § 483.20(k));

• Failed to implement a turning schedule and/or repositioning schedule for both bed and wheelchair (42 CFR § 483.25);

• Failed to conduct regular bodily checks (42 CFR § 483.25);

• Failed to provide proper treatment for the ulcer after discovery (42 CFR § 483.25);

• Failed to recommend special mattress until after ulcers were discovered (42 CFR § 483.20).

STANDARD OF CARE SET OUT BY FEDERAL LAW

This panel indicated in its responses to plaintiff’s questionnaire that it was unfamiliar with the federal OBRA regulations regarding nursing homes.  Nursing homes are heavily regulated by both state and federal law.  These laws establish the appropriate standard of care for nursing home conduct on many issues.  One of the issues specifically addressed under the federal regulations is the prevention and treatment of decubitus ulcers.  Defendant’s Director of Nursing, Rhonda Darden, was asked about the federal OBRA regulations in her deposition taken in this case as follows:

“Q So to summarize, these OBRA regulations that you’ve looked at for decubitus ulcers or pressure sores, for accidents, and then for the care plan set the standard of care for the nursing home?

A Yes.  But I’d also like to add that the resident has the right to refuse any treatment as well.”  (Darden Depo. Exhibit “1”, p. 30-31).

The OBRA regulations not only establish the standard of care, but provide guidance to surveyors on determining whether a nursing home has breached the applicable regulation.  For pressure sores, the determination of nursing home compliance reads as follows:

For this resident, the pressure sore/ulcer is avoidable if the facility properly assessed, care plan, implemented the care plan, evaluated the resident outcome and revised the care plan as needed.  If not, the pressure sore/ulcer is avoidable.  (42 CFR 483.25(c)(1), F. 314).

Breaking this regulation down into its basic parts, this panel will note that a nursing home must:

1)             Care plan;

2)             Implement the care plan;

3)             Evaluate the resident outcome;

4)             Revise the care plan as needed.

If a resident has developed a decubitus ulcer and the nursing home is unable to show it took these steps, then the ulcer is to be considered avoidable.  In other words, the nursing home has violated federal regulation and by its own admission, has breached the appropriate standard of care to its resident.

THE SPECIFIC BREACHES BY MAISON TECHE

Applying the standards established above to the facts of this case shows overwhelmingly that Maison Teche breached its duty of care owed to Ms. B regarding the prevention and treatment of her decubitus ulcer.

1.  FAILED TO CARE PLAN PROPERLY

Attached herewith as Exhibits “2” and “3” are the September 22, 2003 care plan for Ms. B and the December 23, 2003 care plan.  The panel will note that in each of these, Ms. B was assessed as being at risk for decubitus ulcers.  Unfortunately, these care plans did not go far enough in providing a course of action to be taken to prevent their development.  Notably, they do not provide for routine body checks.  Nor does either plan call for turning and/or repositioning while in her wheelchair.  There was no recommendation for a special mattress.  This panel is no doubt aware that turning every two hours is the recommended method of avoiding ulcers while a patient is in bed.  However, Ms. B was often in her wheelchair during the day.  The U.S. Department of Health & Human Services’ recommendations for turning while in a wheelchair are for every one hour.  Attached herewith as Exhibit “4” is the sworn statement provided by Ms. Eulaine Brown.  Ms. B testified that no one from the nursing home ever helped reposition her while she was in her wheelchair.  (B Depo., Ex. 4, p. 8).  She testified that she was often left in her wheelchair for long periods of time and in her own words, “Sometimes all day.”  (B Depo. Ex. 4, p. 9).

The September 22, 2003 care plan for Ms. B contains two notations regarding skin integrity.  These are found at Nos. “(08)” and “(14)”.  On the September care plan, the notation that Ms. B fell and suffered a fracture is made next to the No. (14) notation.  This is appropriate and something that should be noted by Maison Teche because of the increased immobility brought on by the fracture.  Prior to the fracture, Ms. B, although essentially bed-bound, was able to reposition herself on her own.  After the fracture, she was unable to do this on her own.  Inexplicably, this important information is left off of the subsequent care plan dated December 23, 2003.  Obviously, this type of information continued to be relevant but was no doubt left off because of the boilerplate type of care plan the nursing home developed for Ms. B.  The panel will note that this care plan is sorely lacking in specific recommendations personalized to Ms. B’s needs.  This is simply a computer-generated form.  The nursing home created this form for the sole purpose of saying they had one.  As will be explained later, Maison Teche was not using it to guide its employees in Ms. Brown’s care.

2. FAILED TO IMPLEMENT THE CARE PLAN

Implementation of the information in the care plan is where the rubber meets the road.  This is also the place where Maison Teche’s negligence is most obvious.  Maison Teche did not have any ADLs and/or flow sheets provided to its LPNs or CNAs requiring them to make sure Ms. B was turned on a regular basis.  There were no turn records of any type until eleven days after the ulcer was discovered.  Nor did they have any information provided regarding routine body checks.  As will be explained further below, the LPN and several CNAs entrusted with Ms. B’s care revealed in their depositions that they had never seen Ms. Brown’s care plan.

As this panel may be aware, a nursing home is organized into separate halls or floors.  Each hall has one LPN in charge with typically, two to four CNAs working under the guidance of the LPN.  The CNAs are the front line caregivers.  The specifics for resident care are outlined to the LPNs and CNAs in the patient’s ADLs or flow sheets.  A copy of Ms. B’s flow sheets from Maison Teche are attached herewith as Exhibit “5”.  These are dated monthly from January, 2003 through January, 2004.  This panel will note that the flow sheets do not contain any information regarding turning and/or body checks.  In other words, there were no instructions given to the LPNs or CNAs requiring them to turn Ms. B or to check her body for skin breakdown.  This is an obvious failure to implement the care plan (as inadequate as it was) for Ms. B.  Attached herewith as Exhibit “6” is the deposition of one of Ms. B’s LPNs, Rachel Kapp.  Beginning at page 27 of her deposition, Ms. Kapp acknowledges that the flow sheets did not contain any instructions to turn Ms. Brown every two hours.  At page 28 of her deposition, she acknowledges that the flow sheets do not contain any instructions on repositioning Ms. B while she was in her wheelchair.  Ms. Kapp acknowledges that this should have been done particularly after Ms. B fractured her leg and had increased immobility.  She was asked,

“Q Would you also agree with me that after she fell and broke her leg, a turning schedule should have been implemented?

A Yes.”

Ms. Kapp notes that body checks would be logged in the treatment record portion of Ms. Brown’s medical records.  That portion of the record is attached herewith as Exhibit “7”.  This panel will note from a review of the treatment records that there were no body checks being performed.  Ms. Kapp was asked about this issue at page 9 of her deposition,

“Q If you had done that [body checks], where would you log that information in the records?

A Treatment administration record.

Q If it’s not there, can we assume that it wasn’t being done?

A Yes.

Q Would you agree with me that after she fell and broke her leg due to her increased immobility, routine body checks is something that should have been done?

A Yes.”

Perhaps the most startling revelation from Ms. Kapp’s deposition was her admission that she had never reviewed Ms. B’s care plan.  (Kapp Depo., Ex. 6, p. 18).  Federal regulations require the nursing home to maintain a care plan for each resident.[1]  According to the law, “The nursing home must develop a comprehensive care plan for each resident that includes measurable objectives and timetables to meet their residents’ medical, nursing and mental and psychosocial needs that are identified in the comprehensive assessment.”  Federal law requires that the nursing home’s aides “. . . are able to demonstrate competency in the skills and techniques necessary to care for residents’ needs, as identified the resident’s assessments and described in the plan of care.”[2]  Clearly, if the nurse in charge of the CNAs had never seen Ms. B’s care plan, then the CNAs under her were not being kept abreast of Ms. Brown’s specific needs.

Ms. B had several CNAs during the relevant time period.  Plaintiff’s counsel was only able to depose three of these prior to the deadline for this panel submission.  These individuals are Pat Robinson, Loretta Gray, and Shirley Ward.  Their depositions are attached herewith as Exhibits “8”, “9” and “10”.  Ms. Robinson testified at page 11 of her deposition that she never saw Ms. Brown’s care plan.  Moreover, she testified at page 14 that the nursing home never had any meetings to discuss decubitus ulcer prevention for Ms. B.

Loretta Gray initially testified that she had seen Ms. B’s care plan.  However, when she was shown an actual copy of the care plan, she was obviously confused about what it was.  She was asked,

“Q Have you ever reviewed that [care plan] before today?

A To be honest, I don’t know.  I don’t know.”  (Gray Depo., Ex. 9, p. 11).

Shirley Ward testified that she did not remember ever looking at Ms. B’s care plan.  (Ward Depo. Ex. 10, p. 7).

1. FAILED TO EVALUATE AND REVISE THE CARE PLAN

There is nothing to indicate Maison Teche attempted to evaluate the outcome of its care plan for Ms. Brown until after the decubitus ulcer was discovered.  At that time it was already in an advanced stage and it is clear from the records that the nursing home took immediate steps to cover its tracks on its obvious shortcomings.  A turning plan was implemented on instructions from the DON January 3, 2004.  The request for a specialty mattress was made January 6, 2004.  This was a case of too little too late.  Ms. B’s ulcer had already begun tunneling.  Attached herewith as Exhibit “11” are the history & physical, discharge summary and operative report for Ms. Brown’s admit to Iberia Medical Center.  The admit was for January 13, 2004.  The discharge summary of Dr. Thomas Borland notes the “principal diagnosis of gangrenous sacral ulcer, Stage IV.”  He also notes a “necrotic right heel ulcer, Stage IV” and finally, “Stage III, right thigh ulcer.”  The operative report of Dr. Borland notes a post-operative diagnosis of “Gangrene of right sacral ulcer with osteomyelitis, Stage IV ulcer.  Ulcer of necrotic right heel Stage IV ulcer; and necrotic Stage III ulcer, right thigh.”

Contrast Dr. Borland’s findings with the weekly skin reports, nurses’ notes and treatment record for Ms. B.  The nurses’ notes are attached herewith as Exhibit “12”.  The weekly pressure ulcer progress reports are attached herewith as Exhibit “13”.  The treatment record was previously attached as Exhibit ­­­­“7”.  Referring to the weekly skin reports, the initial assessment on January 3, 2004 described the ulcer as a Stage III.  That same report indicates turning every two hours was started January 2, 2004 and that multivitamins were also started January 2, 2004.  It is disgraceful that the ulcer was already 7 x 8 cm., Stage III and 3 cm. in depth by the time it was found and initially staged.  The skin report for January 12, 2004 indicates that in just over a week, the ulcer had grown to 7 x 12 cm. and was now Stage IV.  That same report lists its depth at 1.5 cm. which is obviously incorrect in light of Dr. Borland’s findings.

This evidence overwhelmingly suggests that the nursing home failed to render the proper treatment for the wound after its discovery.  Plaintiff would point out that there was a delay from the date of discovery (nurses’ note of December 30, 2003) and the first affirmative step taken to treat the ulcer (pressure ulcer report of January 3, 2004).

Ms. B also had ulcers at the heel and back of her knee.  These were not discovered until January 12, 2004 after her cast was removed.  This is another clear indication of lack of preventative care Maison Teche provided.  The OBRA regulations for pressure ulcers specifically obligate the nursing home to assess, care plan and implement measures to prevent ulcers from casts.  The issue was completely ignored.

THE NURSING HOME DEFENSES (EXCUSES)

Plaintiff anticipates the nursing home will respond to the overwhelming evidence against them with two predictable defenses.  (1) They blame the resident.  (2) They allege they were acting appropriately; they just weren’t keeping proper records.  In this case, Maison Teche has stooped to new lows by obtaining the affidavits of six CNAs to support their defenses.  All six affidavits are identical.  All six were drafted by the nursing home’s attorney.  A copy of one of those affidavits, that of Shirley Ward, is attached herewith as plaintiff’s Exhibit “14”.  The panel will note that paragraph 4 of Ms. Ward’s affidavit states:  “She implemented the decubitus protocol by turning and repositioning Eulaine Brown every two hours as per the car [sic] plan.”  At paragraph 5 the affidavit states:  “The plaintiff periodically refused to be turned or repositioned when it was time for turning or repositioning.”

Plaintiff was only able to depose three of the CNAs who gave affidavits prior to this panel submission deadline.  Those depositions of CNAs Pat Robinson, Loretta Gray and Shirley Ward were referenced above as Exhibits “8”, “9” and “10”.  When this panel reviews the depositions and compares the deposition testimony to the affidavits, it will see that the affidavits are complete and disgraceful fabrication.

There is no question that Ms. B could be a difficult resident.  And it is conceded that she was at times noncompliant.  However, there is nothing in the nursing home records to indicate that she ever refused to be turned.  If this panel will review the nurses’ notes previously attached as Exhibit “12”, it will see that there is not one nurse’s notation indicating that Ms. B ever refused to be turned.  As the LPN, Ms. Kapp noted in her deposition and as this panel is no doubt aware, such a refusal should be charted.  (Kapp Depo., Ex. 6, p. 16).  This problem was never charted for Ms. B because it never took place.

The depositions of the CNAs will support this fact.  Pat Robinson was asked about the issue beginning at page 12 of her deposition.  She stated that Ms. B refused to be repositioned “maybe four” times.  (Robinson Depo., Ex. 8, p. 12).  On closer examination; however, Ms. Robinson testified as follows,

“Q Would you ever try to talk Ms. B into turning when she refused?

A Yes.

Q Were you ever successful in talking her into being turned?

A Yes.

Q Were there times when you could not talk her into being turned?

A No.

Q So despite the fact that she refused periodically to be turned or repositioned, you were able to talk her into it?

A Yes.”  (Robinson Depo., Ex. 8, p. 13).

In describing Ms. B as a resident, Ms. Robinson testified as follows:

“Q Tell me what kind of resident Ms. B was.  What was her demeanor?

A She was a good resident.

Q Did you ever have any problems with her?

A No.”  (Robinson Depo., Ex. 8, p. 7).

CNA Robinson’s description of Ms. B as a resident was seconded by CNA Ward.  She described Ms. B as “A pretty good patient.”  (Ward Depo. Ex. 10, p. 6).  CNA Ward was also asked about her affidavit wherein she stated Ms. Brown refused to be turned.  When pressed on the issue, she responded “Well, really, she didn’t hardly refused me because she had liked me.”  She next testified, “I would talk to her.  I would tell you, ‘I’m  going to turn you, Ms. Eulaine’, and I would turn her.”  (Ward Depo. Ex. 10, p. 16).

Again, paragraph 4 of each affidavit states that the CNA implemented the decubitus ulcer protocol by turning and repositioning Ms. B every two hours as per the care plan.  This is an obvious fabrication.  As was established earlier in this paper, none of the CNAs remember ever seeing the care plan.  They were not being as directly truthful as the LPN who admitted outright that she had never looked at it.  Further, the medical records on their face show that there was no decubitus ulcer protocol until some four days after the decubitus ulcer was discovered.  Obviously, the CNAs were coerced into signing these affidavits.  This is most evident in the deposition of Shirley Ward.  At page 10 of her deposition she was asked to describe the decubitus ulcer protocol referenced in her affidavit.  She responded, “Explain the word ‘protocol’.”  (Ward Depo., Ex. 10, p. 10).

Plaintiff is hopeful that this panel will see through this obvious attempt by Maison Teche to play games with the truth.  Maison Teche’s attempt to deceive the panel into believing that they turned Ms. B every two hours begs the question:  If you were turning her every two hours, how did she get the decubitus ulcers?  Just as important:  Why wasn’t the ulcer discovered until it was already in an advanced stage?

CONCLUSION

The evidence in this case overwhelmingly suggests that Maison Teche breached its duty of care to Ms. B in terms of preventing and treating her decubitus ulcer.  Maison Teche failed to implement the care plan, failed to implement a turning schedule, failed to implement a schedule for repositioning while in her wheelchair, failed to implement body checks, failed to recommend a special mattress, and failed to render proper treatment after the ulcer was discovered.  The statement of Ms. B supports the fact that she was left in her wheelchair for extended periods of time, “Sometimes all day”.  This panel need look no further than the defendant’s own medical records to find support for Ms. B’s statement.

The standard of care for Maison Teche is set out very clearly in the federal OBRA regulations.  They breached those regulations and by their own admissions a breach in the regulations is a breach in the standard of care.

Ms. B suffered immensely as a result of this decubitus ulcer.  She required surgery and wound care therapy that has lasted over a year.

RESPECTFULLY SUBMITTED,

GUILLIOT & ST. PÉ

(A Professional Law Corporation)

________________________________

KENNETH D. ST. PÉ

La. Bar Roll No. 22638

428 Jefferson Street

P.O. Box 2877

Lafayette, Louisiana 70502

(337) 232-8177